George F. Will: Montana bucks the Supreme Court

By GEORGE F. WILL Published: May 31, 2012
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Montana uses an interesting argument to justify defiance of a Supreme Court decision: Because the state is particularly prone to political corruption, it should be trusted to constrict First Amendment protections of political speech.

At issue is the court's 2010 Citizens United decision, which held, unremarkably, that Americans do not forfeit their First Amendment rights when they come together in corporate entities or labor unions to speak collectively. What do liberals consider the constitutional basis for saying otherwise?

Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law banning all corporate political spending. The state's supreme court refused to do this, citing Montana's supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations' failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court.

Reasons for the Supreme Court to reconsider Citizens United are nonexistent. The ruling's primary effect has been to give unions and incorporated nonprofit advocacy groups freedom to spend what they choose on political advocacy as long as they do not coordinate with candidates or campaigns. Campaign “reformers,” who advocate speech rationing, apparently regard evidence irrelevant to argument, probably because there is no evidence for their assertion that 2012 has been dominated by corporate money unleashed by Citizens United. An amicus brief submitted to the court by Sen. Mitch McConnell, Congress' staunchest defender of the First Amendment, notes:

Through March 31, the eight leading super PACs supporting Republican presidential candidates received contributions totaling $96,410,614. Of this, $83,220,167 (86.32 percent) came from individuals, only $13,190,447 (13.68 percent) from corporations, and only 0.81 percent from public companies. McConnell says “not a single one of the Fortune 100 companies has contributed a cent” to any of the eight super PACs.

Justices Stephen Breyer and Ruth Bader Ginsburg, who dissented in that decision, say the Montana case gives the court an occasion to reconsider it “in light of the huge sums currently deployed to buy candidates' allegiance.” Disregard the unsupported smear that candidates are bought, but note this: If these justices believe candidates are corrupted by independent expenditures, presumably they believe that regulating or outlawing them can be justified as combating corruption or the “appearance” thereof. Hence their objection is not to Citizens United but to constitutional protection of advocacy-funding practices that are as old as the Republic.

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